Pulse May / June 2022 | Page 59

“ Your spa ’ s incident response is only as good as its plan . If your employees have been trained and have bought into the goal of running a cohesive spa and wellness center , that plan should be strong .”

locker room attendant notified ? Has that attendant been trained on whom to tell and how to respond ?
Incident response is tricky because it requires providing customer service to the guest while also gathering the information needed to investigate the loss for liability . The primary goal is to notify those who need to know about the incident ASAP . Follow your policies and protocols and training . If Loss Prevention needs to be notified , do so . If Legal needs to be notified , do so . If the incident is major — a sexual assault or significant injury , for example — you may want to get outside legal involved . Why ? While I realize lawyers are sometimes ( often ?) obnoxious to deal with , having a lawyer involved on the front end is helpful to direct traffic , gather all the needed documents and have someone outside your organization to ensure all aspects of the incident are being handled in a cohesive manner — in other words , the right hand will know what the left is doing . The most important reason to have a lawyer involved from the very beginning is something called “ attorney-client privilege , work product doctrine and anticipation of litigation .” These are privileges that attach to the investigation and all findings — all interviews , all notes and all opinions related to the event , as long as it was attorney-directed or the attorney is copied and included and it was not done in the course of normal business .
Ensure there is good communication among all parts of your organization — do not rely on Loss Prevention attending to the guest ’ s needs . Often , their role is to collect information . The spa director or another leader should handle forward-facing needs with the understanding that litigation is possible . This means anything you say or do will get scrutinized in hindsight . Find out the facts . Make the guest comfortable . Inquire if they would like police / ambulance / etc . called . If they decline , you may want to do so anyway . Do not accept liability or responsibility in the heat of the moment . You don ’ t know what really happened and are in no position to make that call . When it comes to handling payment for the service , make it clear that the service is being comped because it did not meet their expectations — and for no other reason . Invite them to return .
When the guest leaves , interview — in conjunction with HR and legal counsel — everyone who interacted with them . Document everything ( or have the attorney do it ). Pull all records related to the guest . Gather surveillance footage from around the property that shows the guest . Preserve everything ( and give it to the attorney ). Follow up with the guest for customer service purposes , but be careful that you do not solicit a claim . This should be handled in a strategic manner and Legal and corporate may be consulted for specific handling . If the guest reaches back out , respond in a timely manner , keeping in mind your response will be exhibit number one in litigation . Make sure the person responding is who you want to represent the spa , and proofread the response .
If you receive a letter of representation or a preservation letter from an attorney , contact corporate and your insurance carrier immediately . The next call should be to counsel .
As you can see , the recommendations are nearly endless . Ultimately , they are just that — recommendations ( which are often scenario-specific ). There is much to ponder , but considering at least some of these issues in advance is better than facing an incident or lawsuit unprepared . While seeing them all in one place may feel overwhelming , I would remind you that the only way to eat an elephant is one bite at a time . Start somewhere . Start today . When an incident happens , you will be able to breathe , and your operations will not be completely disrupted by having to figure out how to react . n
AMY L . TRACY passionately serves as senior counsel with Munson , Rowlett , Moore & Boone in Little Rock , Arkansas . Licensed in multiple jurisdictions , she has practiced law both in-house and in private practice , seeking to guide her clients in compliance , risk management , litigation defense and everything in between .
MAY / JUNE 2022 • PULSE 41